Citation Nr: 0801389
Decision Date: 01/14/08 Archive Date: 01/29/08
DOCKET NO. 05-29 805 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to a compensable rating for the veteran's
service-connected total anacusis of the right ear disability.
2. Entitlement to service connection for a mental disorder,
to include as secondary to the veteran's service-connected
total anacusis of the right ear disability.
ATTORNEY FOR THE BOARD
Linda E. Mosakowski, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1975 to
December 1979.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas, that denied a compensable rating
for the veteran's service-connected total anacusis of the
right ear disability and that denied service connection for a
mental disorder.
In his September 2005 substantive appeal, the veteran
requested a travel board hearing at the RO before a Veterans
Law Judge, but in October 2005, the veteran withdrew his
request for a hearing.
The issue of entitlement to service connection for a mental
disorder is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C.
FINDING OF FACT
The veteran's current hearing impairment for his service-
connected right ear is at level XI.
CONCLUSION OF LAW
The criteria for a disability rating of 10 percent, and no
higher, for the veteran's service-connected total anacusis
of the right ear disability have been met. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. §§ 3.321, 3.383, 4.1, 4.2,
4.22, 4.85, 4.86 (2007); 38 C.F.R. §§ 4.85 to 4.87a (1979);
38 C.F.R. §§ 4.85 to 4.87a (1975).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (38 C.F.R., Part 4),
which represents the average impairment in earning capacity
resulting from injuries incurred in military service and the
residual conditions in civil occupations. 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 3.321(a), 4.1.
A disability rating for hearing impairment under Diagnostic
Code 6100 is determined by applying objective data from
audiological tests to ratings tables published in the
regulations. 38 C.F.R. § 4.85(h) (Table VII Percentage
Evaluation for Hearing Impairment under Diagnostic Code
6100).
Pursuant to 38 C.F.R. § 4.85(a), the results from a
controlled speech discrimination test (Maryland CNC) and a
puretone audiometer test for each ear are applied against the
prescribed tables to determine the correct disability rating
for a hearing impairment. See 38 U.S.C.A. § 1155
(authorizing the Secretary to create schedules for disability
ratings based on the average impairments of earning
capacity); 38 C.F.R. § 4.85(a) (establishing which tests are
required to be used in rating a hearing impairment).
Generally, an evaluation of the extent of impairment requires
consideration of the whole recorded history (38 C.F.R.
§§ 4.1, 4.2), but when, as here, service connection has been
in effect for many years, the primary concern for the Board
is the current level of disability. Francisco v. Brown, 7
Vet. App. 55, 58 (1994). Yet, the relevant temporal focus
for adjudicating an increased rating claim is on the evidence
establishing the state of the disability from the time period
one year before the claim was filed until a final decision is
issued. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218
(Vet. App. Nov. 19, 2007). Thus, staged ratings may be
assigned if the severity of the disability changes during the
relevant rating period. Here, since the required tests were
given only once (at the March 2004 audio compensation and
pension (C&P) examination) during the rating period, staged
ratings are not warranted.
The March 2004 C&P examination was conducted as required by
38 C.F.R. § 4.85(a). The puretone audiometric test results
from that examination for the veteran's service-connected
right ear measures 105 decibels for each of the frequencies
of 1000 Hertz (HZ), 2000 Hz, 3000 Hz, and 4000 Hz. Thus, the
average puretone audiometric score for the right ear is 105
decibels. The veteran's speech recognition score for the
right ear is zero percent.
In order to calculate the disability evaluation, a Roman
numeral designation for hearing impairment must first be
determined. Generally, the data from the audiology
examinations is applied to Table VI of 38 C.F.R. § 4.85(h) to
determine the Roman numeral designation. Here, the
intersection of the puretone threshold average (105) and the
percentage of speech discrimination (0) intersect to yield a
Roman numeral designation of XI.
Based on the pattern of his hearing loss, however, the
special rules of 38 C.F.R. § 4.86(a) govern how the hearing
acuity Roman numeral designation is determined. Since the
veteran's score for each of the four Hertz levels is 55
decibels or greater, the hearing test data is applied to both
Table VI and Table VIa of 38 C.F.R. § 4.85(h), and the higher
Roman numeral designation will be used to determine the
percentage evaluation for hearing impairment. 38 C.F.R.
§ 4.86(a). Applying the puretone threshold average score
(105) to Table VIa also yields a Roman numeral designation of
XI.
If impaired hearing is service-connected in only one ear, in
order to determine the disability rating from Table VII, the
nonservice-connected ear is assigned a Roman numeral
designation of I. 38 C.F.R. § 4.86(f). Since the veteran is
not service connected for his left ear, a Roman numeral
designation of I will be used for that ear.
To determine the percentage evaluation, the hearing acuity
Roman numeral designations for each ear are applied to
Table VII in 38 C.F.R. § 4.85(h), which sets forth the
percentage evaluation for hearing impairment under Diagnostic
Code 6100. Applying Roman numerals XI for the right ear and
Roman numeral I for the left ear to Table VII, the result is
a 10 percent disability rating for the current level of
hearing impairment.
But the veteran was granted service connection for his right
ear disability on the basis of a pre-existing disability that
was aggravated during service. The regulations provide that
in cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the
degree existing at the time of entrance into the active
service. 38 C.F.R. § 4.22. It is therefore necessary to
deduct from the present degree of disability the degree, if
ascertainable, of the disability existing at the time of
entrance into active service. Ibid.
When the veteran entered active service, his entrance
examination revealed hearing within normal limits for his
left ear, but a hearing disability in his right ear. As
relevant here, the audiometric scores on the veteran's
entrance examination for the right ear were: 75 decibels at
1000 Hertz (Hz); 70 decibels at 2000 Hz, and 70 decibels at
4000 Hz. The veteran's hearing at 3000 Hertz was not
measured, so in terms of the current schedule (see 38 C.F.R.
§ 4.85(d)), the degree of disability at the time of entrance
is not ascertainable and no deduction will be made. See
38 C.F.R. § 4.22.
Accordingly, since the veteran had been assigned a
noncompensable disability rating, his claim for an increased
disability rating for his total anacusis of the right ear
disability is granted and a rating of 10 percent, and no
higher, is assigned. A higher rating is not warranted
because the maximum schedular rating possible with impaired
hearing that is service-connected in only one ear is a
10 percent rating. See Table VII, 38 C.F.R. § 4.85(h).
In order for the left ear to be treated as service connected,
hearing impairment in the right ear must be compensable to a
degree of 10 percent or more, as is the case here, and
hearing in the left ear must meet the provisions of 38 C.F.R.
§ 3.385. See 38 C.F.R. § 3.383(a)(3) (2007). Here, however,
the veteran does not have a hearing loss disability of the
left ear in accordance with the provisions 38 C.F.R. § 3.385.
Rather, on VA audiological examination in March 2004, pure
tone thresholds, in decibels, were as follows for the left
ear: 20 at 500 Hz; 15 at 1000 Hz; 25 at 2000 Hz; 20 at 3000
Hz; and 20 at 4000 Hz. Speech audiometry revealed speech
recognition ability of 100 percent in the left ear.
The veteran makes many arguments about how much worse his
hearing is now than it was when he was granted service
connection. But this increased rating is not the result of a
worsening hearing impairment of the right ear. Rather, it is
the result of amendments to the criteria for rating hearing
impairment disabilities. For example, if either the
regulations in effect at the time of the veteran's entrance
to service, or the regulations in effect at the time service
connection was granted in 1980 were applied, the data would
have yielded disability rating of 10 percent at the time of
the veteran's entry into service. See 38 C.F.R. §§ 4.85 to
4.87a (1975); 38 C.F.R. §§ 4.85 to 4.87a (1979). But when
the entrance examination data is applied against the criteria
set forth in the regulations in effect at the time the
veteran filed this claim in September 2003, the degree of
disability at the time of entrance is not ascertainable, as
discussed above, and no deduction will be made. See
38 C.F.R. § 4.22.
Finally, VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In
this case, prior to the initial adjudication of his claim,
the veteran was provided adequate notice by means of a
December 2003 letter from the RO. There is no indication of
any relevant records that the RO failed to obtain, and the
veteran was provided with a VA audiological examination in
March 2004. Therefore, the duties to notify and assist have
been satisfied.
ORDER
Entitlement to a 10 percent disability rating, and no higher,
for total anacusis of the right ear is granted, subject to
the regulations governing the payment of VA monetary
benefits.
REMAND
Unfortunately, a remand is required in this case. Although
the Board sincerely regrets the delay, it is necessary to
ensure that there is a complete record upon which to decide
the veteran's claim so that he is afforded every possible
consideration.
The veteran's service connection claim for a mental disorder
includes both a direct service connection claim and a
secondary service connection claim. Service connection may
be granted for a disability resulting from disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1131
(West 2002); 38 C.F.R. § 3.303(a) (2007). To establish
direct service connection, three requirements must be met:
(1) the existence of a current disability; (2) an injury or
disease was incurred during active military service; and
(3) a relationship exists between the current disability and
the inservice injury or disease. See Watson v. Brown, 4 Vet.
App. 309, 314 (1993) (a determination of service connection
requires a finding of the existence of a current disability
and a determination of the relationship between that
disability and an injury or disease incurred in service).
Service connection on a secondary basis may be granted for a
disability that is proximately due to, or the result of, a
service-connected disability. 38 C.F.R. § 3.310(a).
Establishing service connection on a secondary basis requires
evidence that shows: (1) a current disability exists;
(2) the current disability was either (a) caused by or
(b) aggravated by a service-connected disability. Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
The veteran was afforded a mental disorders C&P examination
in February 2004. After examining the veteran, the C&P
examiner stated that he believed some of the veteran's
depression is secondary to his hearing impairment, but that
there were numerous other factors that contribute to his
depression. He concluded that he did not know how to assign
a percentage that is attributable specifically to the hearing
impairment.
The February 2004 C&P examination report is inadequate in
many respects. First, the examiner did not review the claims
file, so he had no access to the veteran's service medical
records, the treatment records and testing with respect to
the veteran's service-connected total anacusis of the right
ear disability, or the records of extensive psychiatric
treatment since service. Second, the C&P examiner provided
no opinion as to whether any mental disorder had its onset
during active military service or within one year following
discharge. Third, while the examiner believed that the
depression was secondary to the hearing impairment, he
provided no reasoning so as to make clear whether he meant
that the hearing impairment caused the mental disorder or
instead, makes the mental disorder worse than it would
otherwise be in the natural progression of that disorder.
Without such information, the record does not contain
sufficient competent medical evidence to decide the claim.
38 C.F.R. § 3.159(c)(4). Accordingly, the RO/AMC should make
arrangements for another examination to determine the
veteran's currently diagnosed mental disorder(s) and the
relationship between the veteran's service-connected hearing
impairment disability and his diagnosed mental disorder(s).
The veteran is hereby notified that it is the veteran's
responsibility to report for the examination and to cooperate
in the development of the case, and that the consequences of
failure to report for a VA examination without good cause may
include denial of the claim. 38 C.F.R. §§ 3.158, 3.655.
Since the most recent mental health treatment records in the
claims folder are from February 2006, the claims folder
should be updated with recent treatment records.
Accordingly, the case is REMANDED for the following action:
1. Ask the veteran to identify all
facilities where he was treated for mental
health dating from February 2006, and make
arrangements to obtain any identified
records.
2. Then, make arrangements for the
veteran to have an appropriate examination
to determine whether the veteran has any
current mental disorders, and if so, the
relationship of each disability to the
veteran's service-connected total anacusis
of the right ear disability. The claims
folder, to include a copy of this Remand,
must be made available to and reviewed by
the examiner in conjunction with the
examination report. Any indicated studies
should be performed.
The examination report must provide
complete rationale for all opinions and
must address the following matters:
(a) Identify all current diagnoses of
mental disorders;
(b) For each diagnosis, determine whether
it is as likely as not (that is, a
50 percent probability or greater) that
its onset occurred during the veteran's
active military service from December 1975
to December 1979, or within one year
thereafter;
(c) For each diagnosed mental disorder
that did not have its onset during the
veteran's active military service,
determine whether it is at least as likely
as not (that is, a 50 percent probability
or greater) that the veteran's service-
connected total anacusis of the right ear
disability: (i) caused the diagnosed
mental disorder; (ii) makes the diagnosed
mental disorder worse than it would
otherwise be in the natural progress of
that mental disorder; or (iii) is not
related to the diagnosed mental disorder.
(d) For each diagnosed mental disorder, if
any, that did not have its onset during
the veteran's active military service, but
as likely as not makes the diagnosed
mental disorder worse than it would
otherwise be in the natural progress of
that mental disorder (that is, the mental
disorders discussed in paragraph (c)(ii),
above), describe the nature of, and the
level of disability of, that diagnosed
mental disorder before the right ear
disability began making it worse. If that
is not possible, describe: (i) the level
of disability of each such diagnosed
mental disorder at the earliest point of
time it is possible to describe its level,
(ii) what the level currently would be due
to the natural progression of the mental
disorder, and (iii) the current level of
mental disorder as a result of the
aggravation by the service-connected total
anacusis of the right ear disability.
(e) For each matter, if it is not possible
to give an opinion, state that and provide
the rationale for why it is not possible.
(f) To the extent the examiner's diagnoses
or opinions are contrary to others
contained in the record, the examiner
should address how and why his or her
opinion is different.
3. Thereafter, readjudicate the issue on
appeal. If the claim remains denied,
provide the veteran and his
representative, if any, with a
supplemental statement of the case. Allow
an appropriate period for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs